In Re Subpoena 317 Labs, Inc. Case No. 2:24-mc-00079-FLA-MAR United States District Court, C.D. California Filed September 24, 2024 Counsel Ethan Preston, Preston Law Offices, Dallas, TX, for Plaintiff. J. Kraft, Stradling Yocca Carlson and Rauth LLP, Newport Beach, CA, for Subpoena 317 Labs Inc. Rocconi, Margo A., United States Magistrate Judge Proceedings: (In Chambers) ORDER GRANTING MOTION TO COMPEL, DKT. 1 I. BACKGROUND *1 Plaintiff Alwina Fykes (“Plaintiff”) has filed a motion to compel non-party 317 Labs, Inc. d/b/a Emotive (“Emotive”) to comply with a subpoena duces tecum. ECF Docket No. (“Dkt.”) 1. Plaintiff is the named plaintiff in the underlying class action in the Western District of North Carolina, which alleges that Defendants Hallelujah Acres, Inc. and Does 1 to 10 (collectively, “Defendants”) violated the Telephone Consumer Protection Act (47 U.S.C. § 227) (“TCPA”) and analogous North Carolina telemarketing laws via text messages sent to Plaintiff personal cellular telephone number in June 2022. Dkt. 1-1 at 2; Declaration of Ethan Preston (“Preston Decl.”) ¶ 2. The originating court entered a default against Defendants, and permitted Plaintiff to take limited post-default discovery to prepare for class certification and class damages. Id. ¶ 3. Plaintiff ultimately took discovery from Google LLC, which provided email service to Defendants. Id.. ¶¶ 3–4. Google produced email headers showing extensive communications between Defendants and Emotive, a text message marketing company. Id. ¶ 4. Plaintiff believes it is likely that Defendants' communications with Emotive will provide or help locate evidence supporting class certification. Id. ¶ 5. While Plaintiff was able to obtain email headers from Google, the Stored Communications Act (“SCA”) 18 U.S.C. § 2701, et seq. prevented Plaintiff from obtaining the content of those emails; Plaintiff also suspects there may be communications between Defendants and Emotive through other channels. Id. ¶ 4. On February 28, 2024, Plaintiff served a subpoena on Emotive for various documents, including all documents concerning communications with Defendants, and call records for text messages sent on Defendants' behalf; the subpoena set a production deadline of March 14, 2024. Id. ¶ 6, Ex. 2. Emotive never responded in any way to February 2024 subpoena. Id. On March 21, 2024, Plaintiff emailed legal@emotive.io to follow up with Emotive on the subpoena. Id. ¶ 7. Plaintiff never received a substantive response or any automatic response indicating that the Plaintiff's email had not been delivered. Id. On May 14, 2024, Plaintiff mailed and emailed a letter requesting that Emotive meet and confer with Plaintiff under Local Rule 37-1. Id. ¶ 7, Ex. 3. Again, Plaintiff never received a substantive response or any automatic response indicating that the Plaintiff's email had not been delivered. Id. ¶ 7. On June 26, 2024, Plaintiff filed the instant motion. Dkt. 1. The Court issued a briefing schedule and ordered Plaintiff to serve the order on Emotive and file a proof of service. Dkt. 4. Plaintiff failed to file a proof of service, and therefore the Court issued an order to show cause why the motion should not be dismissed. Dkt. 5. On August 13, 2024, Plaintiff filed a response indicating that they did not receive the Court's scheduling order; accordingly, the Court discharged the order to show cause. Dkts. 6–7. Plaintiff filed a proof of service on August 19, 2024. Dkt. 8. To date, Emotive has not filed a response. II. DISCUSSION *2 Rule 45 of the Federal Rules of Civil Procedure governs the issuing and service of subpoenas on nonparties. Fed. R. Civ. P. 45. Rule 45(b)(1) provides that “[s]erving a subpoena requires delivering a copy to the named person.” Id. Though the Ninth Circuit has not ruled on the question, most courts understand Rule 45(b) to require personal service. See In re Subpoena to VaughnPerling, No. 2:19-MC-00083-CAS (EX), 2019 WL 8012372, at *3 (C.D. Cal. Dec. 2, 2019); see also Fujikura Ltd. v. Finisar Corp., No. 15-mc-80110-HRL-JSC, 2015 WL 5782351, at *5 (N.D. Cal. Oct. 5, 2015) (collecting cases). To be enforceable, the subpoena must comply with the substantive requirements for a subpoena set out by Rule 45. Fed. R. Civ. P. 45(a)(1)(A). Rule 45(a)(1)(A) requires that every subpoena state the court from which it is issued, state the title of the action and its civil-action number, specify to each person to whom it is directed the time and place set for the production, and set out the text of Rule 45(d) and (e). Fed. R. Civ. P. 45(a)(1)(A)(i)–(iv). The recipient of a Rule 45 subpoena has several options: he or she may elect to comply with the subpoena, move to quash the subpoena based on undue cost or burden, object to the subpoena's form, or challenge the subpoena pursuant to the procedures set forth in Rule 45. Fed. R. Civ. P. 45(d), (e); see also Glodney v. Travelers Com. Ins. Co., No. 2:19-CV-10503-GW-MAA, 2020 WL 8414988, at *16 (C.D. Cal. Sept. 30, 2020). If the recipient responds to a subpoena with objections, the party who served the subpoena may move for an order compelling compliance. See Fed. R. Civ. P. 45(d)(2)-(3). However, courts are split on what the serving party's remedy is if a non-party wholly fails to respond to a subpoena. Some courts have held that if the recipient does not respond to the subpoena, the only relief available to the serving party is to seek a contempt sanction under Rule 45(g) via an application for an order to show cause. See, e.g., Delis v. Sionix Corp., No. SACV 131547-AG-RNBX, 2014 WL 12603094, at *1 (C.D. Cal. Sept. 30, 2014) (“[T]he only sanction available where a non-party witness fails without adequate excuse to obey a properly-served subpoena is a contempt citation.”); see also Echostar Satellite L.L.C. v. Viewtech, Inc., No. 1:09MC00052-SMS, 2010 WL 653186, at *1 (E.D. Cal. Feb. 22, 2010) (“If the recipient fails or refuses to respond to the subpoena, the proponent may first try to negotiate compliance, as by offering to meet and confer, but ultimately, if the recipient fails to comply without adequate excuse, the recipient is in contempt of court, and the proponent must file an application for an order to show cause why a contempt citation should not issue.”); Salinas v. Procter & Gamble Co., No. CV 19-6794-RGK (ASX), 2020 WL 8455192, at *1 (C.D. Cal. Oct. 23, 2020) (denying motion to compel compliance with Rule 45 subpoena because the relief sought was unavailable in the Rule 45 context, declining to construe motion to compel as ex parte application for order to show cause re: contempt). Other courts have held that courts discretion to grant motions to compel compliance with a Rule 45 subpoena, even where the receiving party fails to respond. See Gann v. Kokor, 2021 WL 2983010, at *2 (E.D. Cal. July 15, 2021) (“[S]ome courts have expressed concerns with issuing a contempt order imposing sanctions for a non-party's non-compliance with a Rule 45 subpoena absent a court order compelling discovery.”); Dominguez v. Ford Motor Co., No. 5:21-CV-00226-JWH-SP, 2021 WL 6496838, at *2 (C.D. Cal. Dec. 1, 2021) (granting motion to compel compliance with Rule 45 subpoena, finding “contempt sanctions are premature here since [the non-party] has not had the opportunity to comply with the court's order.”); Erickson v. Builder Advisor Grp. LLC, No. 22-MC-80094-TSH, 2022 WL 1265823, *3 (N.D. Cal. Apr. 28, 2022) (citing Poturich v. Allstate Ins. Co., No. EDCV 150081-GW-KKX, 2015 WL 12766048 (C.D. Cal. Aug. 11, 2015)) (granting motion to compel compliance with Rule 45 subpoena but declining to order contempt sanctions because “[b]efore sanctions can be imposed under [the Rule], there must be a court order compelling discovery.”); In re Subpoena to VaughnPerling, 2019 WL 8012372, at *3 (“The Court may also grant a motion to compel compliance with a Rule 45 subpoena, however, where the nonparty has not formally objected but has instead failed to respond.”); Doe v. United States, No. 5:24-MC-00003-KK-SPX, 2024 WL 1481443, at *2 (C.D. Cal. Mar. 18, 2024) (noting that courts have discretion to grant motions to compel compliance with Rule 45 subpoenas before granting motion to compel). *3 Ultimately, while the reasoning from each line of cases is persuasive to some extent, the Court finds that weight of authority slightly favors the latter procedure—particularly in more recent cases. At least in the circumstances here, where neither the serving party nor the Court has made formal contact with the receiving party, the Court finds that the recipient should not be faced with potential contempt sanctions before receiving an opportunity to respond to one formal court order. See Poturich, 2015 WL 12766048, at * 2 (explaining that, while Rule 45 subpoenas are treated as court orders, many courts have noted that a court should issue an order compelling discovery before imposing sanctions under Rule 45). Accordingly, the Court proceeds to consider the merits of Plaintiff's motion to compel. The Court notes that the substantive requirements for a subpoena set out by Rule 45(a)(1)(A) appear to be met here: (1) the subpoena states the court from which it is issued; (2) the subpoena states the title of the action and its civil-action number; (3) the subpoena specifies to each person to whom it is directed the time and place set for the production; and (4) the subpoena sets out the text of Rule 45(d) and (e). Preston Decl. ¶ 6, Ex. 2. Based on Plaintiff's representations in the motion, the subpoena also appears to seek relevant information that is proportional to the needs of the case.[1] The Court also notes that it appears that a representative of Emotive has been personally served with the subpoena at least twice. Id.; Dkt. 8-1. Yet, Emotive has not responded to the subpoena, or to the orders of this Court, which have also been served on Emotive. Dkt. 8-1. Emotive's failure to oppose the motion “may be deemed consent to the granting ... of the motion.” Local Rule 7-12. Accordingly, the Court finds that Plaintiff's motion should be granted. III. ORDER Plaintiff's motion to compel is GRANTED. Plaintiff is ordered to serve a copy of the subpoena and this order within seven days. Emotive shall comply with the subpoena within fourteen days of the date of service. Should Emotive fail to comply with the subpoena and this order by that time, plaintiff may bring an ex parte application for an order to show cause why Emotive should not be held in contempt of court.[2] IT IS SO ORDERED. Footnotes [1] Emotive's failure to timely object to the subpoena has likely waived any objections, absent a showing of good cause. See Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (citations omitted). [2] Note that, absent consent by the parties, magistrate judges lack contempt authority except in limited circumstances, none of which are applicable here. See 28 U.S.C. § 636(e); Bingman v. Ward, 100 F.3d 653, 656-57 (9th Cir. 1996). Absent consent, a magistrate judge may only investigate whether further contempt proceedings are warranted and, if so, “certify” such facts to a district judge. 28 U.S.C. § 636(e)(6); see also C.D. Cal. Gen. Order 05-07; Aguilar v. City of Azusa, No. CV14-9183-GW (JPRX), 2016 WL 11755112 (C.D. Cal. Jan. 5, 2016).